Abstract

After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court's decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors' report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.

The authors then provide an expanded analysis of prosecutorial arbitrariness in charging decisions in all thirty-seven U.S. states that still allow death sentences. They focused on each state's statutory scheme setting forth criteria for seeking the death penalty, and determined that the more expansive the list of death-qualifying criteria is, the greater the potential for prosecutorial abuse of discretion in filing capital cases. The authors also provide the following statistics for each state between 1996 and 2006: state population, number of statutory foundational death qualifiers, number of death sentences, number of sentences to life without parole, and the number of sentences for premeditated murder.

This is followed by a discussion of the Federal Death Penalty Act and the Federal Protocol in filing death penalty cases. The authors suggest that these be used as models to reduce the potential for prosecutorial arbitrariness in capital cases. They also address the need to balance prosecutorial discretion with fairness in seeking the death penalty.

Finally, they provide several suggestions for for ensuring a more just use of capital punishment. These include narrowing the statutory categories of death-eligible crimes, implementing and following publicly disclosed charging criteria and procedures, increased and centralized review of charging decisions, curtailing the ability of elected officials to seek the death penalty, judicial review of charging decisions, and improved record keeping for capital case statistics.